Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Guatemala (Ratification: 1952)

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The Committee notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), received on 1 September 2023, which relate to matters examined in the present comment. The Committee also notes that the observations concerning the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), of the International Trade Union Confederation (ITUC), on the one hand, and the Autonomous Popular Trade Union Movement: Global Unions of Guatemala, on the other, received on 27 and 29 September 2023, respectively, contain elements relating to the application of the present Convention, examined in this comment. The Committee notes that the observations of the Autonomous Popular Trade Union Movement: Global Unions of Guatemala also contain numerous allegations of anti-union discrimination and obstacles to collective bargaining in the private and public sectors. While noting the Government’s responses to these observations, the Committee requests it to continue its specific follow-up on each of the cases indicated by the trade unions with a view to ensuring the application of the guarantees set out in the Convention.

The Committee notes that, since its previous examination of the application of the Convention by Guatemala, the Governing Body has continued the follow-up to the ILO technical cooperation project “Strengthening of the National Tripartite Committee on Labour Relations and Freedom of Association in Guatemala for the effective application of international labour standards” (GB/346/INS/10 and GB/349/INS/10(Rev.1)). The Committee observes that the Governing Body noted in particular the joint mission to Guatemala by the ILO, the International Organisation of Employers (IOE) and the ITUC in September 2022 to follow up the technical cooperation provided by the ILO in relation to the application of the road map on freedom of association approved by the Government in 2013. The Committee notes that the mission and the members of the National Tripartite Committee on Labour Relations and Freedom of Association (CNTRLLS) jointly identified a series of priority actions, several of which are related to the application of the present Convention.

Submission of a complaint under article 26 of the ILO Constitution

The Committee notes that at its 349th Session the Governing Body declared receivable a complaint filed by various delegates under article 26 of the ILO Constitution alleging non-observance by Guatemala of this Convention and of Convention No. 98, the content of which will be examined by the Governing Body at its session in June 2024 (GB.349/INS/19/2).

Article 1 of the Convention. Protection against anti-union discrimination. Activities of the labour inspection services. In its previous comments, the Committee referred once again to the effects on protection against anti-union discrimination of the implementation of Legislative Decree No. 7/2017, which restored the power of the labour inspection services to impose penalties. The Committee notes the Government’s indication that the General Labour Inspectorate applies a special investigation procedure for freedom of association and collective bargaining, which contains a series of methodological and technical recommendations. The Government adds that, between 1 January 2021 and 16 August 2023, the General Labour Inspectorate: (i) dealt with 211 cases relating to trade union organizations and collective bargaining; (ii) noted 36 violations of the law in respect of freedom of association and imposed the same number of penalties to a total amount of 1,021,532.73 quetzales (approximately US$132,800). The Government adds that, under the legislation that is in force, those penalties may be subject to administrative appeals and action. The Committee also notes the Government’s indication that, at the request of worker representatives, the General Labour Inspectorate has established 80 dialogue roundtables to resolve collective disputes, with solutions being found that are satisfactory to the workers, such as the reinstatement of dismissed workers and the payment of wage arrears in 19 cases. The Committee takes due note of this information. Also observing the persistence of many allegations by trade unions of anti-union discrimination, the Committee requests the Government to continue strengthening measures so that violations of trade union and collective bargaining rights are addressed as a priority by the labour inspection services. The Committee requests the Government to continue providing information on the number and type of penalties imposed by the General Labour Inspectorate in trade union matters, with an indication of the stage of their implementation and the number of administrative or judicial appeals made against them.

Effective judicial proceedings. In its previous comments, the Committee urged the Government to take action as soon as possible to overcome the obstacles to effective compliance with reinstatement orders handed down by the courts and to adopt new procedural rules to ensure that all cases of anti-union discrimination are examined by the courts in summary proceedings. The Committee notes the Government’s indication that: (i) in 2022, a coordinating group was established between the Office of the Public Prosecutor, the judicial authorities and the Ministry of Labour and Social Welfare to address bilaterally cases raised by workers’ representatives, and is still waiting for the workers to indicate a date for meetings to begin; (ii) on 10 February 2023, the Pluripersonal Court of Penal Resolution was inaugurated to hear crimes relating to the failure to give effect to labour and social welfare rulings, and is based in the City of Guatemala; (iii) its competence includes cases of failure to comply with reinstatement orders issued by courts; (iv) up to 27 July 2023, a total of 137 orders had been referred to the Court, with 38.34 per cent of the cases being under investigation and hearing dates have already been set for the third quarter of 2023 for another 38.4 per cent of the cases and/or procedural solutions have been applied. The Committee notes the Government’s further indication that it does not have available specific data on reinstatement procedures in cases of anti-union dismissals, as not all the economic and social disputes referred to the courts by the executive committee of unions concern anti-union dismissals. Despite that, the Government indicates that, between 2020 and 2022, the courts examined 21 cases relating to the reinstatement of trade union leaders or the members of unions that were being established, with the following outcomes: (i) the employer accepted the reinstatement in one case; (ii) the employer has not accepted it in four cases; (iii) it was not possible to examine the issue in 12 cases; and (iv) the court ruling was not implemented in four cases. The Government adds that, as agreed by the joint mission by the ILO, IOE and ITUC and the CNTRLLS, the ILO is currently carrying out an analysis of the challenges faced in achieving compliance with court reinstatement orders in cases of anti-union dismissals. The Committee also notes a series of further initiatives reported by the Government with the intention of facilitating judicial processes in labour matters, including in particular: (i) the establishment of a system for the electronic notification of the parties to cases; (ii) the specialization of various labour and social insurance tribunals, with their separation from the family branch; and (iii) the creation by the Supreme Court of the sixth chamber for labour and social insurance, which will allow the more rapid treatment of cases in which appeals are lodged.

The Committee takes due note of this information and particularly welcomes the establishment of the Pluripersonal Court for crimes of non-compliance in labour matters. However, the Committee observes: (i) the persistence of many allegations of the lack of judicial protection in relation to anti-union discrimination; (ii) the observation by the joint mission by the ILO, IOE and ITUC of the existence of a combination of legal, institutional and practical factors preventing the effective operation of the justice system in relation to anti-union discrimination in general and compliance with reinstatement orders in particular; and (iii) that the data provided by the Government on a limited number of cases confirm the difficulties involved in enforcing court reinstatement orders. In light of the above, the Committee requests the Government to continue and intensify the current efforts to ensure compliance with reinstatement orders, taking due account of the guidance provided in the analysis that is currently being prepared by the Office, and to provide statistics on the specific results achieved by the new judicial body in terms of compliance with and the execution of reinstatement orders. Furthermore, observing the lack of legislative progress in relation to judicial labour procedures, the Committee once again urges the Government to, in consultation with the social partners, take the necessary measures for the adoption of new procedural rules to ensure that all cases of anti-union discrimination are examined by the courts in summary proceedings and that the respective court rulings are implemented rapidly.

Article 4. Promotion of collective bargaining. In its previous observations, the Committee noted the existence of various legislative obstacles (particularly those deriving from section 215(c) of the Labour Code, which requires at least 50 per cent membership in a particular sector to be able to establish an industry union, which has the effect of preventing any collective bargaining at the sectoral level) and practical obstacles to the exercise of collective bargaining, and noted the very low number of collective agreements concluded and approved in the country. The Committee notes that the Government refers firstly to a series of activities to promote collective bargaining, including (i) the campaign on freedom of association and the initiatives to facilitate the registration of trade unions described in the Committee’s comments on the application of Convention No. 87; (ii) the various initiatives of the Ministry of Labour and Social Welfare in general, and the General Labour Inspectorate in particular, to resolve collective disputes through dialogue (and particularly the dialogue round-tables referred to above in relation to Article 1 of the Convention); and (iii) the capacity-building for labour judges, especially on the subject of collective bargaining. The Government also indicates that it is awaiting the technical assistance of the Office to facilitate tripartite dialogue on the legislative reform relating to industry unions and sectoral bargaining. The Committee notes the information provided by the Ministry of Labour and Social Welfare to the Governing Body indicating that, between 2015 and July 2023, the Ministry approved a total of 140 collective agreements (in the private and public sectors). The Committee also notes that trade union and international organizations continue to allege the persistence of major obstacles to the exercise of collective bargaining in both the private and public sectors, especially in relation to the process of approval by the Ministry of Labour and Social Welfare. The Committee regrets to note, in light of the above, that legislative obstacles persist which prevent collective bargaining at the sectoral level and that it has not been provided with specific information on the number of enterprise collective agreements concluded and approved over the past two years. The Committee therefore once again urges the Government to, in consultation with the social partners, take the necessary measures to: (i) reform the legislation so that collective bargaining is possible at all levels; and (ii) actively promote the use of free and voluntary collective bargaining and ensure that the approval procedure does not constitute an obstacle to it. The Committee requests the Government to keep it informed in this regard and to provide full information on the number of collective agreements adopted and in force in the country, the sectors concerned and the workers covered.

Articles 4 and 6. Promotion of collective bargaining in the public sector. In previous comments, the Committee requested the Government to provide information on the timeframe for the approval of public sector collective agreements on conditions of work and on the reasons for decisions not to approve such agreements. The Committee also requested the Government to provide information on developments in relation to cases in which the validity of certain clauses of public sector collective agreements has been subject to legal challenges. The Committee notes the Government’s indications that: (i) the period for the approval of collective agreements, whether in the private or public sectors, is 25 working days, although the application of that period is subject to the comments (previos) made by the labour administration to guarantee the legality of the agreements and the response time of the parties to those comments; (ii) the reasons for decisions not to approve agreements are due to the absence of responses by the parties to the comments made by the labour administration; (iii) between 2012 and July 2023, a total of 119 collective agreements were approved in the public sector, of which 23 were approved with reservations, while 25 were not approved; (iv) within the context of the priority actions identified by the joint mission of the ILO, IOE and ITUC, the implementation of a tripartite examination, with ILO assistance, of the practice relating to the approval of collective agreements in the public sector is still pending; and (v) the Government needs to obtain more detailed information on specific cases that have given rise to legal action by the authorities against collective agreements in the public sector.

The Committee also notes the observations by national and international trade union organizations, which continue to denounce, based on a series of specific allegations, that the procedure for the approval of public sector collective agreements by the Ministry of Labour and Social Welfare gives rise to practices that are contrary to free and voluntary collective bargaining and that the Office of the National Attorney-General is continuing to challenge in the courts the validity of certain collective agreements that have already been concluded.

While noting the information provided by the Government, both in general and in relation to specific cases raised by the unions, the Committee notes the existence of profound discrepancies between the Government and the unions concerning the practices of the Ministry of Labour and Social Welfare in relation to the approval of collective agreements and the alleged challenges by the Office of the Attorney General against collective agreements concluded in the public sector. The Committee recalls that, in previous comments, it encouraged the Government to make efforts to ensure that there is a clear and balanced regulatory framework for collective bargaining in the public sector, but that it has not been provided with any further information on this subject. In view of the above, and recalling that Guatemala has also ratified the Collective Bargaining Convention, 1981 (No. 154), the Committee requests the Government to carry out broad consultations with the unions concerned with a view to: (i) evaluating and guaranteeing, in the specific context of the public administration, the conformity of the approval procedure for collective agreements with the principle of free and voluntary collective bargaining; and (ii) identifying the reforms necessary to ensure that collective bargaining in the public sector is based on a clear and balanced regulatory framework. The Committee recalls that the Government can continue to rely on ILO technical assistance in this regard.

Application of the Convention in practice. The maquila sector. In its previous comments, the Committee regretted the persistence of a very low level of the exercise of collective rights in the maquila (export processing) sector and the absence of initiatives focusing specifically on their promotion. The Committee notes the Government’s indications that: (i) four of the cases examined by the recently created Pluripersonal Court of Penal Resolution to hear cases of failure to comply with labour and social welfare orders are related to the maquila sector; (ii), in 2023, the General Labour Inspectorate carried out inspections in 177 enterprises in the maquila sector, without identifying violations of freedom of association and collective bargaining; and (iii) training activities are being carried out for women working in the maquila sector, such as the diploma in auxiliary nursing specializing in reproductive rights and the promotion of human rights, which includes references to ratified ILO Conventions. While noting this information, the Committee observes that: (i) it has not received any further information on the exercise of collective rights in the maquila sector (such as bargaining, the conclusion of collective agreements or the registration of unions); (ii) it has not been provided with information on specific action to promote trade union rights and collective bargaining focusing on the maquila sector; and (iii) the complaint filed in June 2023 under article 26 of the ILO Constitution alleges that anti-union harassment is common in the sector. In light of the above, the Committee urges the Government, in collaboration with the social partners and in accordance with the campaign described in the Committee’s comments on the application of Convention No. 87, to take specific measures to promote freedom of association and collective bargaining in the maquila sector and to provide information on this subject. The Committee also requests the Government to provide updated information on the exercise of collective rights in the sector, including the number of collective agreements in force and the number of workers covered by them, and the number of active unions.

Application of the Convention in municipal authorities. In its previous comments, in light of the existence of allegations of the violation of the Convention in various municipal authorities in the country, the Committee urged the Government to take all the necessary measures, including legislative measures where necessary, to ensure the application of the Convention at the municipal level. The Committee notes the Government’s indications that: (i) three of the cases examined by the recently created Pluripersonal Court of Penal Resolution are related to municipal authorities; (ii) as indicated previously, a coordination group has been created between the Office of the Public Prosecutor, the judicial authorities and the Ministry of Labour and Social Welfare which is at the disposal of workers’ representatives to examine cases that they consider to have priority; (iii) the General Labour Inspectorate is addressing as a priority 54 complaints concerning freedom of association and collective bargaining made against municipal authorities between 2022 and April 2023; and (iv) 12 of the 19 dialogue round-tables established by the General Labour Inspectorate in which satisfactory results have been obtained are related to municipal authorities. The Committee welcomes the various institutional efforts referred to by the Government to resolve disputes that have arisen in a series of municipal authorities and takes due note of the detailed information provided on the specific cases raised by the unions. However, the Committee observes that, despite the above: (i) there are still a high number of allegations of anti-union discrimination and obstacles to collective bargaining in the municipal sector which may reflect the existence of structural difficulties in industrial relations in the sector, which is an important source of formal employment; and (ii) the fact that new mayors are taking office in January 2024 following the elections held in 340 municipalities in the country in 2023 is likely to give rise to new disputes. In view of the above, the Committee urges the Government to: (i) reinforce its current efforts to resolve existing disputes in municipal authorities in accordance with the Convention; and (ii) engage in broad dialogue with the social partners and the respective authorities with a view to finding lasting solutions, including of a legislative nature, to the issues arising in relation to the exercise of the collective rights of municipal workers. The Committee requests the Government to provide information on this subject.

Tripartite settlement of disputes in relation to freedom of association and collective bargaining. In its previous comments, the Committee regretted to note that the Subcommittee on Mediation and Dispute Resolution of the CNTRLLS had not yet started to discharge its functions in practice. The Committee notes the Government’s indications that: (i) the Subcommittee does not yet have a mediator, for which reason it has not been able to examine the 14 cases that it has accepted; (ii) the joint mission by the ILO, IOE and ITUC identified the determination of the profile of the mediator as a priority action; and (iii) the Subcommittee has met on two occasions in 2023 and the determination of the profile of the mediator is continuing. In light of the numerous disputes referred to by the Government and the unions, the Committee emphasizes the importance of developing dispute resolution machinery based on social dialogue. The Committee therefore encourages the tripartite constituents in the country to renew their efforts to provide the Subcommittee on Mediation and Dispute Resolution with one or more mediators so that it can begin to discharge its functions. The Committee requests the Government to provide information in this regard.

Noting the persistence of significant shortcomings in compliance with the Convention, the Committee urges the Government, with ILO technical assistance, to intensify its efforts to overcome the legislative and practical difficulties examined in the present comment.